J & K Bricklaying Pty Ltd v Brown - [2009] NSWWCCPD 89

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
*STATUS: Reported Decision: J & K Bricklaying Pty Ltd v Brown* (2009) 8 DDCR 51**
CITATION:			J & K Bricklaying Pty Ltd v Brown [2009] NSWWCCPD 89
APPELLANT:			J & K Bricklaying Pty Ltd
RESPONDENT:			Craig Lloyd Brown
INSURER:			CGU Workers Compensation (NSW) Ltd
FILE NUMBER:			A1- 10419/08
ARBITRATOR:	Mr B McManamey
DATE OF ARBITRATOR’S DECISION:			30 March 2009
DATE OF APPEAL HEARING:		28 July 2009
DATE OF APPEAL DECISION:			31 July 2009
SUBJECT MATTER OF DECISION:			Sections 52A and 38A of the Workers Compensation Act 1987; whether worker seeking suitable employment
PRESIDENTIAL MEMBER:			Deputy President Bill Roche
HEARING:			Oral
REPRESENTATION:			Appellant:	Mr F Doak, instructed by Bartier Perry
Respondent:	Mr D Vorbach, solicitor, HWL Ebsworth Lawyers
ORDERS MADE ON APPEAL:			Paragraphs one and two of the Arbitrator’s determination of 30 March 2009, amended on 13 May 2009, are revoked and the following orders made: “1. The applicant employer having satisfied the grounds in section 52A(1)(a) of the Workers Compensation Act 1987, weekly compensation payments in respect of the respondent worker’s partial incapacity for work beyond 17 December 2008 are not payable. 2. Paragraph 1(b) of the Certificate of Determination dated 11 August 2003 is amended to delete the words “to date and continuing” and insert “17 December 2008”. 3. No order as to costs.”
Each party is to pay his or its own costs of the appeal.

BACKGROUND

The respondent worker, Mr Brown, injured his right shoulder on 1 July 2002 in the course of his employment as a bricklayer with the appellant employer, J & K Bricklaying Pty Ltd (‘J & K’). He has been paid weekly compensation since his injury either on a voluntary basis or as a result of a by consent determination made by the Commission on 11 August 2003.

On 17 December 2008, J & K’s workers compensation insurer, CGU Workers Compensation (NSW) Ltd (‘CGU’), served on Mr Brown notice of its intention to discontinue weekly compensation payments under section 52A(1)(a) of the Workers Compensation Act 1987 (‘the 1987 Act’).

The notice made the following assertions:

(a) Mr Brown was partially incapacitated for work;
(b) CGU had paid weekly compensation to Mr Brown on the basis of his partial incapacity for a period of 104 weeks;

(c) Mr Brown was not suitably employed within the meaning of section 43A of the 1987 Act, and

(d) Mr Brown was not seeking suitable employment, as determined in accordance with section 38A.

The employer filed an Application to Resolve a Dispute (‘the Application’) in the Commission on 23 December 2008. That Application identified the issue in dispute as Mr Brown’s entitlement to weekly compensation beyond 17 December 2008. In response, Mr Brown filed a Reply on 19 January 2009. The Reply did not indicate the issues in dispute, but the documents attached to it made it clear that Mr Brown disputed CGU’s contentions.

The matter was listed for conciliation and arbitration before a Commission Arbitrator on Wednesday 11 March 2009 when Mr Vorbach, solicitor, represented Mr Brown and Mr Doak, barrister, represented J & K. No oral evidence was heard and the matter proceeded with lengthy submissions from the legal representatives. The Arbitrator identified the issues that remained in dispute to be whether Mr Brown was partially incapacitated and whether he was seeking suitable employment at the time of service of the relevant notice of 17 December 2008.

In a reserved decision delivered on 30 March 2009, the Arbitrator found that Mr Brown had engaged in a search for suitable employment at the relevant time. He therefore held that the employer’s Application to terminate Mr Brown’s entitlement to weekly compensation failed. The Commission issued a Certificate of Determination on 30 March 2009 in which the following formal orders were made:

“1. Award in favour of the Respondent Worker.
2. Applicant employer to pay the Respondent Worker’s costs as agreed or assessed.”

By an appeal filed on 30 April 2009, J & K seek leave to appeal the Arbitrator’s determination.

LEAVE TO APPEAL

Monetary Threshold

Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

There is no dispute that the monetary thresholds in section 352(2) are satisfied.

Time

The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

I grant leave to appeal.

THE EVIDENCE

It is not disputed that Mr Brown is unfit for his pre-injury employment as a bricklayer. Medical certificates restrict him to lifting less than five kilograms with his right hand and no more than two kilograms above shoulder height. Dr Clarke, Mr Brown’s nominated treating doctor, placed an additional restriction on him in a certificate dated 6 June 2008, namely, that he was restricted to travelling up to one hour in a sedan and then needed a half an hour break. That additional restriction will become relevant when considering the rehabilitation evidence set out below.

CGU completed the first of many Injury Management Plans on 6 February 2007. That plan noted that “medical management” required Mr Brown to continue to attend with his nominated treating doctor to obtain updated medical certificates and treatment. The section headed “Return to work” was blank.

CGU arranged for a vocational assessment report to be prepared by Advanced Personnel Management (‘APM’) on 7 June 2007. The purpose of the report was to identify suitable vocational options for Mr Brown given that it was unlikely he would be able to return to his pre-injury occupation as a bricklayer. Mr Brown attended the assessment punctually on 28 May 2007 and was cooperative throughout the assessment. He demonstrated a reasonable level of verbal communication skills and comprehension of questioning in the interview process. He was considered to be a reasonable historian and he did not present with any significant pain behaviours.

The rehabilitation consultant, Karlie Tanner, took a detailed history of Mr Brown’s injury to his right shoulder in 2002 and noted that he had initially been treated with cortisone injections with no benefit. He was also treated with physiotherapy without success. He ultimately came under the care of Dr Breit who operated on his right shoulder in or about 2003. No post-operative treatment or rehabilitation program was provided.

Mr Brown completed his secondary schooling in year nine and did not obtain his school certificate. He has no tertiary or trade qualifications. He has no computer skills. He holds a class C driver’s licence. When asked by Ms Tanner about his willingness to participate in retraining to enhance his career prospects, Mr Brown said that he was interested in undertaking a training course to gain his heavy rigid driver’s licence and his forklift licence. He felt that a driving job would be within his physical capabilities. Mr Brown’s work history was restricted to bricklaying and labouring jobs, which he performed for various employers over several years. He advised that he had previously secured employment through word of mouth and that he had not used any other job search methods in the past. He did not have a resumé and had never been for a job interview. He said that he sought work through the local newspaper, but he had not registered with any job network provider and was not familiar with any form of Internet search. He had not recently been job seeking as he had only recently been able to determine which vocation he would be able to perform given his physical restrictions and given that he does not have the required qualifications.

Ms Tanner administered various tests to determine Mr Brown’s capabilities, personality and aptitudes. Though Mr Brown was noted to have several transferable skills, Ms Tanner concluded that, as his entire work history involved duties that he is now no longer able to perform, his transferable skills were “limited”, but it was noted that he had an ability “to drive for long distances”. Mr Brown’s perceived restrictions on physical tolerances were as follows:

Sitting – Unrestricted
Standing – Unrestricted
Walking – Unrestricted
Driving – Unrestricted. Can drive “15 hours continuously with no aggravation to injury”
Sleep pattern – Unaffected, but must sleep on his left side
Home duties – Independent. Mr Brown reported that he performs lawn mowing and all housekeeping tasks.
Self care – Independent
Lifting weights up to 10kg – Mr Brown reported only “below chest height, and not on a repetitive basis.”

Ms Tanner considered that Mr Brown was “very employable, however he has very limited transferable skills due to his work history as a Brick Layer [sic] and his low level of education, and therefore would require some re-training to increase his skill level and be successful with job seeking.” She identified two vocational options that she considered suitable for him, namely, truck driver and store person. Dr Clarke gave written approval for these occupations and considered them to be physically appropriate for Mr Brown.

Other vocational options were also considered. These included sales assistant, grounds person, bus driver, courier driver, and console operator. However, these vocations were ultimately not considered to be appropriate due to Mr Brown’s previous ability to earn and, the low opportunity in the local labour market for these vocations, and because Mr Brown would require retraining. Therefore, Ms Tanner recommended that he participate in retraining to gain his heavy rigid driving licence and his forklift licence and that he receive short term rehabilitation assistance to develop a resumé and to have job seeking training. An Internet and newspaper search revealed that there was one advertised position for a heavy rigid truck driver in the Coffs Harbour region, but no positions for store persons or storemen.

Ms Tanner provided a “Return To Work Planning Report” on 29 June 2007. This report essentially repeated the conclusions set out in her report of 5 June 2007, but added that Mr Brown lived in the Port Macquarie region, an area with a poor local labour market and limited employment opportunities.

A new rehabilitation consultant, Sarah Reid, took over Mr Brown’s vocational rehabilitation file in July 2007. She provided a progress report on 31 July 2007 in which she noted that the return to work goal for Mr Brown was for him to return to work as a truck driver or store person with a new employer. Arrangements were in place for him to commence training to obtain a heavy rigid truck licence and forklift licence. Mr Brown had not reported any issues with his shoulder and was highly motivated to return to work. It was again noted that Mr Brown had a limited skill base.

Ms Reid reported again on 29 August 2007. On this occasion it was recorded that Mr Brown reported feeling depressed and that he was experiencing personal issues that caused him concern. Ms Reid experienced difficulty maintaining contact with him. Mr Brown failed to attend for a job seeking meeting arranged for 10 August 2007, but did attend for the rescheduled meeting on 17 August 2007 when he agreed that the retraining should go ahead. Mr Brown reported that he was keen to obtain the licences despite his personal difficulties. With Mr Brown’s agreement, training dates were booked for, 5 and 6 September 2007.

In her report of 28 September 2007, Ms Reid stated that she had not been able to establish contact with Mr Brown despite efforts having been made on 5, 11, 14, 17 and 26 September 2007. A letter was forwarded to Mr Brown on 19 September 2007 advising of a meeting to be held at APM’s office on 26 September 2007. Mr Brown did not attend that appointment. Contact was made with Mr Wilkie, the proposed truck-driving instructor, who advised that Mr Brown twice failed his RTA licence theory test and did not wish to continue training until he obtained his licence. Mr Wilkie reported that he was prepared to continue with the training regardless of the lack of licence, but Mr Brown declined that offer.

In view of the lack of response from Mr Brown through September 2007, Ms Reid did not attempt to contact him through October.

CGU prepared a further Injury Management Plan on 10 October 2007. The return to work goal in this plan was to gain employment with a new employer in a new job. Suitable employment goals were again identified as truck driver or store person. A senior injury claims consultant, Margaret Gray, wrote to Mr Brown on 25 October 2007 advising that he had demonstrated an unsatisfactory level of participation in his occupational rehabilitation in that APM had been unable to contact him on several occasions through September. The letter reminded Mr Brown that he was required to, among other things, seek and apply for suitable employment. It also pointed out that his failure to fully co-operate with any obligations in his Injury Management Plan may “jeopardise” his ongoing entitlements to weekly compensation.

Ms Reid completed a “Return To Work Closure Report” on 6 November 2007 in which she noted that Mr Brown had been non-compliant with the rehabilitation goals and rehabilitation process. She noted a general decline in Mr Brown’s presentation through his contact with APM and she liased with Dr Clarke and reported concern as to Mr Brown’s health. APM closed its file due to client non-compliance.

An employee with CGU spoke to Mr Brown on 15 November 2007. Mr Brown said that he had been out of contact because he had lost his phone. In another conversation with an officer at CGU on 16 November 2007, Mr Brown said that he agreed to continue with the rehabilitation programme and to obtain his truck drivers licence. As a result, CGU requested Ms Reid to re-open the file and re-engage in the rehabilitation process.

On 5 December 2007, Ms Reid emailed Mr Brown’s case manager at CGU, Mr Chrysanthou, and set out the steps she had taken in an attempt to contact Mr Brown between 19 November and 5 December 2007. Her attempts included writing to Mr Brown and telephoning him on several occasions. Eventually Mr Brown contacted Ms Reid on 5 December 2007 and said that he had twisted his ankle and would not be able to attend an appointment made for 6 December. He was requested to answer his mobile phone because APM needed to converse with him. He agreed to do so. A new appointment was made to see Mr Brown on 7 December 2007. On that day, Mr Chrysanthou wrote to Mr Brown requesting details (x-rays, doctors reports, etc) in relation to his ankle injury and reminding him that he had agreed to continue with the APM programme.

Ms Reid emailed Mr Chrysanthou on 7 December 2007 advising that she had telephoned Mr Brown’s mobile phone on that day. When a male voice answered she said “Is this Craig?” and the person then hung up. On 6 December 2007, Ms Reid wrote to Mr Brown advising of a new appointment for him with her on 14 December 2007 together with an appointment for him with Dr Clarke on 13 December 2007. On 10 December 2007, Ms Reid again emailed Mr Chrysanthou advising that she had attempted to telephone Mr Brown on his mobile phone but it was switched off. She then contacted his mother who advised that Mr Brown’s leg was in a cast and that she would advise him of Ms Reid’s contact details. Ms Reid unsuccessfully attempted to contact Mr Brown on 11 December 2007.

Mr Brown failed to attend for his appointment on 14 December 2007.

Mr Chrysanthou wrote to Mr Brown on 16 January 2008 reminding him of his obligation under section 57 of the 1998 Act to comply with any reasonable request from the insurance company and stating that a failure to comply with a request may result in a delay in the payment of his weekly benefits.

CGU prepared a further Injury Management Plan on 16 January 2008, which identified the same return to work goal as in the previous plan. The section headed “Return to Work” was blank.

Also on 16 January 2008 CGU again forwarded to Mr Brown a “Statutory Declaration of Dependants and Statement of Income and Employment Status”. This document had previously been forwarded him on 16 November 2007 and 7 December, without any response. Also on 16 January 2008, CGU requested Mr Brown to organise a WorkCover medical certificate and to forward it to the office by 25 January 2008.

APM prepared a further “Return To Work Closure Report” on 21 January 2008, page four of which appears to be missing. The report confirmed that Mr Brown had not forwarded any medical evidence in respect of his ankle injury, had not answered his mobile phone or responded to any messages left with his mother or to any letters forwarded to him.

A further Injury Management Plan was prepared on 1 February 2008, though page 1 of this plan is not in evidence. Under “Return to Work” it is noted that:

“Craig Brown to comply with Injury Management Plan – IMP. Craig must also submit requested Statutory and Income Declarations, Provide tax returns and comply with job search request by submitting requested forms by no later than due date. ** Worker to contact APM and comply by taking truck driving test to secure a truck driver license [sic] as per APM recommendations by no later than 15/02/08”

In addition to forwarding to Mr Brown the Injury Management Plan on 1 February 2008, CGU wrote to him on that day in the following terms:

“According to my records you have been receiving partial weekly benefits under Section 40 of the Workers Compensation Act 1987 for 30+ weeks. You are currently certified fit for suitable duties and are not yet suitably employed.
For you to continue to be eligible for ongoing weekly benefits, you must supply me with your job seeking records, detailing your attempts to obtain suitable employment. Under Section 52A, if you do not provide job seeking records, and you have been paid partially incapacitated weekly benefits for at least two years, your weekly benefit may be discontinued.
You should continue to actively seek employment. You will need to provide details of six jobs per week that you have applied for to ensure your benefits are not discontinued. I have enclosed ‘Job Search’ forms for you. You can contact me for more forms if you need them.
If you have any questions please call me on 02 9088 9892.”

Also on 1 February 2008 CGU wrote to Mr Brown reminding him of its previous letters of 16 January, 7 December 2007 and 16 January 2008 requesting him to complete a “Statutory Declaration of Dependants” & “Statement of Income and Employment Status” forms by 15 February 2008, noting that no form had been submitted.

CGU completed a further Injury Management Plan on 5 March 2008. This plan was essentially in the same terms as its previous plan. The plan was forwarded to Mr Brown under covering letter of the same date that again requested Mr Brown to complete and submit “job logs”. Further copies of letters and log forms were attached. Mr Brown was requested to contact his case manager and to submit the relevant documentation by no later than 26 March 2008. By letter on the same date, Mr Brown was requested to provide a WorkCover medical certificate from his nominated treating doctor.

Also on 5 March 2008, an officer from CGU prepared a file note stating that he or she had attempted to telephone Mr Brown on two separate phone numbers without success.

On 28 March 2008, a CGU file note records that Mr Brown telephoned to say that he had not received his “pay”. When asked about his ongoing non-compliance, Mr Brown said that he was having “family issues”. Mr Brown provided a new address: Dahlsford Grove Lifestyle Village 89/1 Greenmeadows Drive, Port Macquarie. When questioned about his fractured ankle, Mr Brown said it was fine and that there was nothing wrong with it as it had not been fractured, but he had torn all the ligaments. When informed that if he had torn all the ligaments he would have been off his foot longer than if he had fractured it, Mr Brown stumbled over his words and became agitated and changed the subject and started complaining about his pay. Mr Brown then made excuses as to why he could not do “anything more than sit at home and do nothing.” The CGU officer requested Mr Brown to submit all forms requested of him and to resolve his “compliance issues”. Mr Brown then threatened to go to his solicitors as he was on a court award and CGU had no right to ask him anything. It was recommended that Mr Brown see his solicitor.

CGU prepared a further Injury Management Plan on 31 March 2008, essentially in the same terms as the previous plans.
On 31 March 2008, CGU again wrote to Mr Brown attaching a copy of the latest Injury Management Plan and stating, among other things:

“As per your Injury Management Plan dated 01/02/08 and 05/03/08 you have failed to comply by due date 15/02/08 and 26/03/08 as it relates to the following requests:
* Submit Statutory Declaration of Dependants form
*Submit Declaration of Dependants form
* Supply latest two months pay slips as per our letter dated 01/02/08
* Provide latest two years tax assessments
* Comply with job search request as per our letter dated 01/02/08
* Submit job search logs as per our letter dated 01/02/08
* Contact APM and comply by taking truck driving test
* Comply with Return to Work process and resolve non compliance issues”

Mr Brown was again told that in order to avoid further action (“possible suspension”) of weekly benefits he had to, among other things, comply with the job search request as per CGU’s letter of 1 February 2008, submit job search logs as per the same letter, contact APM and comply by taking the truck driving test, and comply with the return to work process and resolve non-compliance issues.

In a further letter dated 31 March 2008 Mr Brown was again requested to provide a recent WorkCover medical certificate by 21 April 2008. In a third letter of the same date, Mr Brown was requested to comply with job searching and to submit “job logs”, including copies of letters and log forms.

By email dated 31 March 2008, Mr Brown’s solicitor, Mr Vorbach, wrote to Mr Chrysanthou requesting, among other things, to be informed of why Mr Brown’s compensation payments had ceased and why Mr Chrysanthou would not speak with Mr Vorbach. Mr Chrysanthou replied later on the same day that he had spoken to Mr Brown earlier in the day and Mr Brown had become “quite hostile and started addressing me with profanity”. He also alleged that Mr Brown threatened him with bodily harm. On the question of weekly compensation, he advised that payments had been made up to 31 March 2008. In respect of attempts to contact Mr Brown, it was stated that his mother lived at 89 Coachwood Crescent and she indicated that she did not want anything to do with her son and CGU was asked to stop trying to contact him at that address.

By email dated 1 April 2008, Mr Vorbach requested precise details of the threats allegedly made by Mr Brown. Mr Chrysanthou replied that the matter was being dealt with internally.

CGU wrote to Mr Brown on 21 April 2008 in similar terms to its letter of 31 March 2008, this time attaching a further Injury Management Plan dated 21 April 2008. It informed him that he had failed to comply with his obligations in the Injury Management Plans dated 1 February 2008, 5 March 2008 and 21 April 2008, in relation to several specified requests. Those requests included, but were not limited to, complying with job search requests and submitting job search logs as requested in the letter of 1 February 2008 (see [36] above).

In a separate letter of the same date, CGU advised of a special job seeking or training benefit available to Mr Brown under section 38 of the 1987 Act if he was taking reasonable steps to obtain suitable employment or seeking or receiving rehabilitation training to improve his chances of obtaining suitable work. In particular, the letter advised Mr Brown to take all reasonable steps to actively seek suitable paid employment. Those steps included registering with Centrelink, registering with job network members or other commercial job agencies or job clubs, actively checking the local and national newspapers, checking the Australian job search internet site, and/or seeking rehabilitation training. He was advised to keep a record of job seeking steps he took.

In 5 May 2008, Mr Brown submitted a Job Search Declaration dated “5 May 2008” [sic] in which he listed four jobs for which he had applied. Two of the jobs were for picking up glasses in clubs, one for work as a window cleaner and the fourth for work as a cleaner at a club. In respect of three of the job applications the “answer given” (presumably by the prospective employer) was recorded by Mr Brown as “not capable”. In respect of the fourth job, picking up glasses at Wauchope Country Club, Mr Brown recorded the answer given as “not capable/no work”. Two of the job applications were made on 5 May 2008 and one each on 7 and 8 May 2008.

On 9 May 2008 Mr Brown signed a Statutory Declaration of Dependants in which he listed himself as a dependant. He also submitted a Statement of Earnings and Employment Status with an attached Statutory Declaration sworn on 9 May 2008.

CGU prepared a further Injury Management Plan on 16 May 2008 and again wrote to Mr Brown on the same date requesting, among other things, that he contact APM and comply with the Injury Management Plan by taking a truck driving test. On the same day, Mr Chrysanthou emailed Ms Reid to advise her that he had requested Mr Brown to contact her within the next two weeks in order to complete his truck drivers test. A copy of the Injury Management Plan was forwarded to Mr Vorbach.

On 3 June 2008, an officer from CGU recorded in a file note that Mr Brown telephoned saying that he wished to be paid his compensation weekly. As the CGU officer started to explain Mr Brown’s non-compliance, Mr Brown said he was “deteriorating fast” and would need to see his doctor to get an unfit certificate. The officer suggested that such a certificate would jeopardise his section 38 entitlements. Mr Brown indicated he had received CGU’s paperwork.

A further Injury Management Plan was forwarded to Mr Brown on 4 June 2008 together with a covering letter advising him of his obligations and reminding him that he had still not contacted APM and taken his driving test as per CGU’s letter of 16 May 2008. The letter stated that, to avoid suspension of weekly payments, Mr Brown had to, among other things, comply with his return to work process and resolve all non-compliance issues including those relating to “Job searching, logging and submission of job logs in accordance with your section 38 agreement.” If Mr Brown became aware of new information that affected the management of this case, he was invited to call Mr Chrysanthou.

By email dated 17 June 2008, Ms Tanner wrote to Mr Chrysanthou advising that Mr Brown had contacted her office and said he was willing to comply with rehabilitation. She sought and was given approval to develop a rehabilitation planning report and to commence a job-seeking programme for Mr Brown.

Mr Vorbach wrote to Mr Chrysanthou on 17 June 2008 advising, as he had in emails dated 31 March, 1 April, 23 April 2008, that Mr Brown’s address was 89 Coachwood Crescent, Port Macquarie and not the address CGU had been using of Dahlsford Grove Lifestyle Village, 89/1 Greenmeadows Drive, Port Macquarie. Mr Vorbach also attached a copy of certificate from Dr Clarke dated 6 June 2008 restricting Mr Brown from travelling for more than one hour in a sedan with a need to then have a ½ hour break and pointing out that such a limit would prevent him obtaining employment as a truck driver. Mr Vorbach added:

“It is plain that the proposed vocational re-direction into truck driving is no longer appropriate, having regard to our client’s increasing disability. In the circumstances it may be inappropriate for you to be treating our client as an appropriate candidate under section 52A.”

Mr Vorbach also noted that his client had been in Sydney in the previous week as his partner was expecting and, because of her heart condition, she required Mr Brown to be attendance. For that reason he had been unable to pursue any job seeking activities, but he remained ready willing and able to accept an offer of suitable employment from J & K, or CGU.

A further Injury Management Plan was prepared and forwarded to Mr Brown on 27 June 2008. Under this plan Mr Brown was to submit requested tax returns and comply with the job search request by submitting forms and documents by 11 July 2008. The Injury Management Plan was forwarded to Mr Brown by CGU under a covering letter dated 27 June 2008. The letter stated, “You are to keep us updated on a weekly basis as to your availability job searching and related job logs.”

Mr Vorbach wrote to CGU on 9 July 2008 advising that his client was still in Sydney because of his partner’s health.

By email dated 6 August 2008, CGU requested Ms Tanner to open the claim “as occ rehab rather than EAS”, noting Dr Clarke’s one hour driving restriction. CGU requested that APM identify suitable employment and hold a conference, if necessary, with the treating doctor. Ms Tanner replied by email on 7 August 2008 seeking approval for APM to first conduct an updated “transferable skills analysis/vocational assessment to determine appropriate vocational options” together with a functional capacity evaluation to assist in determining functional tolerances. Mr Chrysanthou gave approval for all necessary assessments and evaluations.

A further Injury Management Plan was prepared on 7 August 2008 identifying a return to work goal of “gain employment with new employer, different job”. The plan stated that Mr Brown had been referred to APM for assistance in returning to work with a new employer. That assistance was to include assistance with job seeking skills and training. It was noted that APM was designed to promote, support and sustain injured workers into suitable and durable employment. Mr Brown was required to actively participate in the job seeking activities with APM and to make all efforts to obtain suitable employment. Attendance was “mandatory in order to receive weekly benefits”. Mr Brown had to ensure that he returned all phone calls and/or communications from APM, attend at APM as agreed, complete all correspondence requested by the provider, and provide APM with evidence of job seeking efforts. The “expected outcome” of the plan was to ensure that Mr Brown had suitable employment goals and was able to job seek competently and regularly to secure a suitable position with a new employer.

CGU wrote to Mr Brown on 7 August 2008 advising him of his obligations whilst participating in a job placement programme.

By letter dated 12 August 2008, APM wrote to Mr Brown advising him that a vocational assessment would be conducted at 11.30am on 22 August 2008 and that a functional capacity evaluation would be conducted on the afternoon of the same day. At the request of Mr Brown, the appointments for 22 August 2008 were rescheduled for 25 August 2008. Without giving any notice, Mr Brown failed to attend the assessments scheduled for 25 August 2008. Attempts to contact Mr Brown on his mobile phone were unsuccessful.

By letter dated 26 August 2008 Ms Tanner rescheduled the appointments for 1 and 3 September 2008. Mr Brown failed to attend either appointment. On 17 September 2008, Mr Brown advised APM that he had “a lot going on” and would not be attending any appointments with that organisation.

On 17 October 2008, an officer from CGU contacted Mr Brown by telephone. Mr Brown indicated that he could not attend APM as his partner was sick with a heart condition and he was taking care of the baby, two step children and his partner. Mr Brown apparently indicated that he lived with his mother, but took care of his partner and three children in another location. Mr Brown was informed of his need to job search and to provide job logs. It was explained that he would no longer be entitled to section 38 benefits and that he would be moved to a section 40 single statutory rate plus dependant adjustment. He was informed that any change in his circumstances had to be provided to his case manager in writing. Mr Brown demanded to have a new case manager, used abusive language and then hung up.

Mr Brown telephoned a CGU officer on 21 October 2008 and enquired if the call was being recorded. When he was told that it was not, he began using abusive language. He indicated that there was nothing CGU could do about his pay and they would have to keep paying him at his section 38 rate for at least six weeks. The CGU officer explained that that was not the case and that he needed to comply by submitting job logs and maintain visits to APM. Mr Brown was adamant that he could not see “JPP” (submitted to mean “Job Placement Program”) and he was told that he would have to write in and give a reason for his non-attendance. If nothing was received within a reasonable time payments would be suspended. Mr Brown became abusive and the CGU officer terminated the call.

On 11 November 2008, APM advised Mr Brown that a further appointment was made for his functional capacity evaluation for 9pm on 2 December 2008.

On 10 December 2008, APM wrote to J & K’s solicitors, Bartier Perry, and set out a chronology of its attempts to contact Mr Brown between 18 July 2007 and December 2008.

On 17 December 2008, CGU served a notice on Mr Brown advising of its intention to discontinue weekly compensation payments under section 52A of the 1987 Act.

Mr Brown’s evidence

Mr Brown relies on a report from Dr Clarke, general practitioner, dated 18 April 2008. This report merely sets out the history of the injury in 2002 and Mr Brown’s subsequent development of right shoulder pain. Mr Brown was diagnosed with right acromioclavicular arthropathy and he underwent excision of his right acromion in 2003. The doctor’s treatment plan in 2008 included analgesia and encouraging activity. He did not consider Mr Brown to be fully fit as he was restricted to no lifting with his right hand above five kilograms and no lifting above two kilograms above shoulder height. Dr Clarke made no mention of any restriction on Mr Brown’s ability to drive.

Mr Brown relies on a statement from his mother dated 14 January 2009. She states that she lives at 1/89 Coachwood Crescent, Port Macquarie and that Mr Brown has lived with her since 2003. She denies having ever told a representative from CGU that she wanted nothing to do with her son. She stated that Mr Brown receives correspondence at her address and that she gives that correspondence to him.

Mr Brown also relies on his statement dated 14 January 2009. His evidence is that since moving to Port Macquarie in 2003, has always lived with his mother at 1/89 Coachwood Crescent, Port Macquarie and that he has rarely had any difficulty receiving mail at that address. He confirms that he received all of the Injury Management Plans sent to him by CGU. When correspondence was forwarded to the alternative address, Dahlsford Grove Lifestyle Village, 89/1 Greenmeadows Drive, Port Macquarie 2444, he received those letters as well (Mr Brown’s statement, paragraph 4).

Mr Brown is unable to explain why he did not receive “a large number of the letters” attached to APM’s letter of 10 December 2008 addressed to Bartier Perry. He frequently did not answer his telephone when the caller was identified as “private”. He did not believe he ever gave APM the telephone number to his girlfriend’s house.

Mr Brown did receive the letter from APM dated 11 November 2008 advising him of an appointment at 9pm on Tuesday 2 December 2008. In response, he attended at the premises of APM at Horton Street, Port Macquarie at 9pm on the appointed day, but the premises were closed.

In respect of the training to obtain a truck driver’s licence, it was Mr Brown’s understanding that he could not undergo driver training until he had passed the theory test with the RTA. He attempted that test on two occasions but failed each time.

It became apparent to Mr Brown that the truck driving jobs suggested by APM would be beyond his capacity as they involved interstate driving and driving heavy vehicles between Sydney and Brisbane. His current ability to drive is less than two hours in a domestic vehicle. When he recently drove to Sydney to see his solicitor, his girlfriend assisted with the driving as he could not drive for longer than two hours at any one time. In June 2008, Dr Clarke amended his WorkCover medical certificate to say that Mr Brown was unable to drive for extended periods.

Mr Brown submitted a list of jobs for which he applied in May 2008, but did not submit subsequent lists because CGU did not send him any further search declaration forms and had not asked him to submit further forms. He copied the schedule on the form and kept a record of jobs he sought. He did not seek employment in June or the first part of July 2008 because his girlfriend was giving birth and she was unwell and he stayed with her in a lodge at Westmead for the five weeks leading up to the birth of his son. After the birth of his son, he returned to Port Macquarie and resumed his job search efforts.

Mr Brown has always been aware that even with the award of compensation made in August 2003, he was able to earn up to $650.00 per week without it affecting his entitlement to workers compensation. He has always been trying to find any work that would be within his capacity, though he has a limited education and has only ever worked as a bricklayer. He has few skills that he can transfer to other types of work and a limited ability to use his right shoulder for any extended period of time. At all times, he has used his best endeavours to comply with the requirements of CGU and APM. He is unable to explain why he has not received many of the letters referred to in the Application, particularly those sent by APM. He had no difficulty receiving correspondence from CGU and from his solicitor.

Mr Brown states that he has extensive contacts in the Port Macquarie area and these people would, if they were able, provide him with suitable employment.

Mr Brown states that his shoulder has deteriorated “to some extent” and that in December 2008 Dr Clarke referred him for a further specialist consultation with Dr Prowse who arranged for a nerve conduction study and MRI scan in February 2009.

In respect of the telephone conversation with the CGU officer (agreed to be Mr Chrysanthou) on 28 March 2008, Mr Brown states that, to his knowledge, Mr Chrysanthou has never spoken to his mother and he has never given an address other than 1/89 Coachwood Crescent, Port Macquarie. He agrees that he got angry with Mr Chrysanthou but denies that he threatened to go to his solicitors and says that it was Mr Chrysanthou who insisted that he have his solicitor speak to him.

Attached to Mr Brown’s statement are six pages listing employers from whom Mr Brown sought employment between May 2008 and 22 November 2008. These documents are analysed in detail later in this decision (see [97] and [98] below).

Mr Brown also relies on a statement from his solicitor, Mr Vorbach, dated 16 January 2009 together with several annexures to it.

THE ARBTRATOR’S DECISION

In a reserved Statement of Reasons (‘Reasons’) delivered on 30 March 2009 the Arbitrator made the following findings:

(a) as at 17 December 2008 Mr Brown was partially incapacitated (Reasons, at [18]);
(b) Mr Brown had been certified fit for suitable duties since 9 April 2007. The summary of payments made by CGU indicated he had been paid on the basis of partial incapacity for 119.4 weeks. He was satisfied that as at 17 December 2008, Mr Brown has been partially incapacitated for more than 104 weeks (Reasons, at [19]);

(c) it was common ground that as at 17 December 2008, Mr Brown was not suitably employed (Reasons, at [20]);

(d) the job search forms were sufficient evidence to satisfy him that Mr Brown was engaging in a search for employment at the relevant time (Reasons, at [23]);

(e) the directions from the insurer in 2008 were confusing and Mr Brown was entitled to reach the view that it was not necessary for him to keep submitting job search forms so long as he was actually looking for work (Reason, at [24]);

(f) the entries on the job search forms stating that certain jobs were “not applicable” and “not suitable with injury” were entirely appropriate (Reasons, at [25]);

(g) he was satisfied that the job search diaries were reliable and that Mr Brown was seeking work as outlined in those diaries (Reasons, at [26]);

(h) the structure of the workers compensation Acts (the 1987 Act and the 1998 Act) is such that there is a specific provision setting out the consequences if there has been a failure to comply with an Injury Management Plan or rehabilitation. In those circumstances it is not necessary to read section 38A in the manner that creates additional consequences. If section 52A intended that a failure to seek rehabilitation or co-operate with an Injury Management Plan was to be a ground for discontinuance under that section it could easily have said so (Reasons, at [31]);

(i) it was not necessary for him to decide if the worker was not taking reasonable steps to seek or receive rehabilitation training (Reasons, at [32]), and

(j) the employer’s Application must fail.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:

(a) finding that Mr Brown was seeking suitable employment at the relevant time within the meaning of section 52A of the 1987 Act;
(b) finding that the “job search logs” attached to Mr Brown’s statement were a reliable record of Mr Brown’s attempts to seek suitable employment;

(c) failing to take any or any proper account of Mr Brown’s unchallenged evidence that he refused to attend rehabilitation assessments on August and September 2008, and failing to find that Mr Brown was not taking reasonable steps to obtain suitable employment within the meaning of section 38A(2)(d) of the 1987 Act;

(d) failing to correctly apply the tests required by section 52A and section 38A of the 1987 Act in determining whether Mr Brown was seeking suitable employment at the relevant time;

(e) failing to consider or failing to give any or any proper reasons for holding that Mr Brown was taking reasonable steps to obtain suitable employment including seeking or receiving rehabilitation training that is reasonably necessary to improve his employment prospects;

(f) failing to apply section 38A(5) of the 1987 Act, and

(g) in reading down the operation of section 38A(2) by reference to the operation of Chapter 3 of the 1998 Act.

SUBMISSIONS

It is submitted on behalf of J & K that:

(a) the Arbitrator’s statement that the insurer’s directions to Mr Brown “were confusing and the worker was entitled to reach the view that it was not necessary to keep submitting the forms so long as he was actually looking for work”, was not open to the Arbitrator, or was against the weight of the evidence. The insurer advised Mr Brown of the need to submit job search forms in letters dated 1 February 2008, 31 March 2008, 21 April 2008, 4 June 2008 and 27 June 2008. In addition the insurer’s file notes of 17 and 21 October 2008 confirm that the case manager restated to Mr Brown the requirement to submit job logs and to attend rehabilitation. The Arbitrator made no reference to this material. The Arbitrator’s finding was based on Mr Brown’s assertion that CGU did not ask him to submit further forms after May 2008. That assertion was incorrect;
(b) Mr Brown said he did not submit the job search forms after May 2008 because the insurer had not sent the forms to him. However, Mr Brown also stated that he had made copies of the forms, which he completed between May and November 2008 but did not sent them to the insurer. Mr Brown’s evidence is unreliable and contradictory. The Arbitrator should have rejected the job search forms as evidence that Mr Brown was genuinely seeking suitable employment at the relevant time;

(c) the Arbitrator inferred that Mr Brown had held discussions with prospective employers about his capability to perform work and stated (Reasons, at [25]) “If that discussion disclosed that the work was beyond the worker’s physical capabilities then the entries made [in the job search diaries] are entirely appropriate.” The only evidence is that Mr Brown sought work through contacts in the Port Macquarie area. There is no evidence as to why Mr Brown was, for example, “not capable” of picking up glasses in May 2008;

(d) there is a complete absence of evidence of any other method of job seeking by Mr Brown, such as looking at newspaper advertisements or contacting job seeking agencies. The case manager’s file notes on 17 and 21 October 2008 establish that Mr Brown said to the rehabilitation consultant and to the case manager that he could not participate in rehabilitation training because of family commitments. That statement is inconsistent with the worker’s assertion that he was seeking suitable employment at the time. Therefore, Mr Brown’s assertion that he was seeking suitable employment as set out in the job search forms should have been given little, if any, weight;

(e) reliance is placed on the authority of Vezitis v Belmont Timbers (NSW) Pty Limited [1997] NSWCC 14; (1997) 14 NSWCCR 407 (‘Vezitis’);

(f) whether a worker is suitably employed at the relevant time is determined in accordance with section 38A of the 1987 Act. A worker is not to be regarded as seeking suitable employment unless he or she is taking reasonable steps to obtain suitable employment from some other person (section 38A(2)(d)). The Arbitrator did not refer to this requirement, which is an additional requirement to that in section 52A as it uses the word “obtain” rather than “seek” and imposes the requirement that the worker’s steps to obtain employment are reasonable;

(g) the Arbitrator failed to consider section 38A(5). He should have found that that sub-section applied and that Mr Brown unreasonably refused to have an assessment made of his employment prospects (the functional and vocational assessment) and failed to co-operate in the rehabilitation process. As such, Mr Brown should not have been regarded as seeking suitable employment;

(h) as Mr Brown was neither seeking nor receiving rehabilitation training, he could not be regarded as having complied with section (38A(2)(d)). The Arbitrator accepted Mr Brown’s argument that if a worker is “seeking or receiving rehabilitation training then he is seeking suitable employment without the need to actively job search”. That interpretation is too narrow;

(i) even if the Arbitrator’s interpretation of section 38A(2)(d) is correct, it does not assist Mr Brown because the Arbitrator made no finding as to whether Mr Brown was seeking or receiving rehabilitation training reasonably necessary to improve his employment prospects. Such a finding would not have been open in any event because Mr Brown repeatedly failed to comply with the rehabilitation process in 2007 and 2008;

(j) the Arbitrator interpreted section 38A as being restricted by the terms of section 57 of 1998 Act. There is nothing in the 1998 Act to support the Arbitrator’s interpretation. Chapter 3 of 1998 Act is directed to the “timely, safe and durable return to work for workers...” with the employer. Sections 52A(1) and 38A(2)(d) have a different purpose, and

(k) the Arbitrator should have found that the evidence established that Mr Brown was not seeking suitable employment within the meaning of section 52A and section 38A(2)(d) and entered an award for the employer.

It is submitted on behalf of Mr Brown that:

(a)the Arbitrator’s decision is the true and correct decision and should not be amended. The Arbitrator had the opportunity of observing and assessing Mr Brown’s demeanour and conduct in the course of the arbitration and a Presidential member does not have that opportunity;

(b)the Arbitrator applied the legislation after a proper consideration of the evidence and applied the correct interpretation of section 38A(2). He did not refer to section 38A(5) because no submissions had been made about that sub-section;

(c)the Injury Management Plans were not a genuine attempt by the employer/insurer to return Mr Brown to suitable employment in that they did not define measurable goals or provide clear instructions as to how the goals were to be achieved. The Injury Management Plans were nothing more than a device to support the termination application filed on 29 December 2008;

(d)Mr Brown is a person of low educational standard and limited intellectual capacity who has only ever worked as a bricklayer. He is not a sophisticated person who has the capacity to read and understand complex documents such as the voluminous letters and demands made by the appellant in the various letters that were sent to him in 2007 and 2008;

(e)Mr Brown underwent a vocational assessment in June 2007. The resulting report indicated that his transferable skills were limited. The reference to Mr Brown being able to drive “15 hours continuously with no aggravation to injury” is plainly a typographical error and should read 1.5 hours. On the basis of this report the insurer and rehabilitation provider took it upon themselves to retrain Mr Brown as a driver of heavy interstate trucks, but he was unable to pass the test;

(f)there is no evidence that Mr Brown has refused (whether unreasonably or not) to have an assessment made of his employment prospects or to co-operate in procedures connected with the provision or arrangement of suitable employment or rehabilitation training under the employer’s return to work programme, within the meaning of section 38A(5). He underwent such an assessment in June 2007 and it would be unreasonable to require a further assessment as early as 2008. The rehabilitation provider refused to speak with Mr Brown’s solicitor. There was never a refusal on the part of Mr Brown, except when his partner was giving birth;

(g)there was a serious antagonism between Mr Brown and the case manager appointed by the insured. The insurer failed to comply with Mr Brown’s request to have an alternative case manager appointed;

(h)the Arbitrator’s interpretation of section 38A(2)(d) is correct. Seeking suitable employment includes seeking or receiving rehabilitation training. There is no additional requirement that a worker must seek suitable employment and seek or receive rehabilitation training;

(i)the appellant has adduced no evidence to challenge the validity of the worker’s attempts to find a suitable employment. Having observed Mr Brown’s demeanour, and in the absence of any contradictory evidence, it was open to the Arbitrator to accept the veracity of the job search records. Mr Brown was unaware of the need to submit the job log forms;

(j)it was up to Mr Brown how he made enquiries about work. He is aware of his physical limitations and the insurer gave no instruction as to how he had to seek employment or complete the job log forms. There was no affirmative evidence that he did not look in the newspaper;

(k)the decision in Vezitis depends on its own facts in a case where the worker was cross-examined. Mr Brown was not cross-examined despite the appellant’s counsel being given the opportunity to do so. The unwillingness to cross-examine Mr Brown ought lead to a conclusion adverse to the appellant’s submission as to the sincerity of Mr Brown’s job seeking activities. The failure to cross-examine raises a gross procedural unfairness against Mr Brown. There is no evidence that he did not contact the people listed in the job logs;

(l)to require Mr Brown to attend a further vocational assessment within 12 months of the first assessment was onerous and oppressive and should not be permitted to be a basis for criticism of the worker, or termination of his entitlement to compensation;

(m)Mr Brown was not provided with a copy of the 2007 vocational assessment report until December 2008. The Injury Management Plan dated 7 August 2008 referred to a goal of “gain employment with new employer, different job” and stated that that goal had been “determined in accordance with [Mr Brown’s] initial assessment/vocational assessment completed by APM” and developed in consultation with Mr Brown, Dr Clarke and APM, yet the initial assessment completed in 2007 had not been served until December 2008. Dr Clarke was not consulted by CGU or APM after April 2008;

(n)the Injury Management Plan of 7 August 2008 makes no sense and gives no constructive direction to the worker as to what was expected of him. It was a “formulaic response to the statutory requirements” of the legislation that demonstrates no sincere endeavour on the part of the appellant to offer rehabilitation services to Mr Brown. A close scrutiny of all the Injury Management Plans leads to the conclusion that there is a total absence of good faith on the part of the insurer;

(o)the insurer instructed investigators to place Mr Brown under surveillance on 5 March 2008. At least after March 2008, if not earlier, the appellant had no sincere intention of rehabilitating Mr Brown, but its actions were motivated by a desire to fabricate a basis for the Application to Terminate which was filed on 29 December 2008 rather than an effort to help Mr Brown return to work. There was an absence good of faith on the part of the appellant amounting to a fundamental failure to fulfil its obligations to the worker under the legislation.

DISCUSSION AND FINDINGS

The legislation

Section 52A provides:

“Discontinuation of weekly payments for partial incapacity after 2 years

(1) Weekly payments of compensation in respect of partial incapacity for work are not payable for any period beyond the first 104 weeks of partial incapacity for work (whether or not any part of that period is compensated as if the incapacity for work was total) but only if one or more of the following paragraphs (referred to in this section as ‘grounds for discontinuation’) applies to the worker at the ‘relevant time’:

(a) the worker is not suitably employed (within the meaning of section 43A) and is not seeking suitable employment (as determined in accordance with section 38A),
(b) the worker is not suitably employed (within the meaning of section 43A) and has previously unreasonably rejected suitable employment (within the meaning of section 40 (2B)),
(c) the worker has sought suitable employment but has failed to obtain suitable employment primarily because of the state of the labour market (rather than because of the effects of the worker’s injury).

(2) The ‘relevant time’ for the purposes of this section is the time at which the notice under section 54 of intention to discontinue payment of compensation pursuant to this section is given. The discontinuation of payments under this section has effect even if, after the relevant time, none of the grounds for discontinuation applies to the worker.
(3)...” (emphasis included)

Section 38A provides:

“Determination of whether worker seeking suitable employment

(1) Application This section provides for the determination of whether a worker is seeking suitable employment for the purposes of section 38 and section 52A (Discontinuation of weekly payments after 2 years).
(2) General requirements The worker is not to be regarded as seeking suitable employment unless:
(a) the worker is ready, willing and able to accept an offer of suitable employment from the employer, and
(b) the worker has supplied the employer (or the insurer who is liable to indemnify the employer) with a medical certificate with respect to the worker’s partial incapacity for work, being a medical certificate that is in or to the effect of a form approved by the Authority, or that is in any other form and contains information that is reasonably sufficient in the circumstances to assist in determining what is suitable employment for the worker, and
(c) the worker has requested the employer (or such an insurer) to provide suitable employment or it is apparent from the circumstances that the worker is ready, willing and able to accept an offer of suitable employment from the employer, and
(d) the worker is taking reasonable steps to obtain suitable employment from some other person.

Taking reasonable steps to obtain suitable employment includes seeking or receiving rehabilitation training that is reasonably necessary to improve the worker’s employment prospects.
(3)…
(4)…
(5) Workers treated as not seeking suitable employment A worker is not to be regarded as seeking suitable employment if the worker has unreasonably refused an offer from any person of suitable employment or necessary rehabilitation training. A worker is also not to be regarded as seeking suitable employment if the worker:
(a) unreasonably refuses to have an assessment made of the worker’s employment prospects, or
(b) unreasonably refuses to co-operate in procedures connected with the provision or arrangement of suitable employment or rehabilitation training under the employer’s return-to-work program.

(6) …
(7) Definitions In this section:
‘employer’ of a worker who is partially incapacitated for work means the employer liable to pay compensation to the worker in respect of the incapacity or, if there are 2 or more such employers, the employer so liable who last employed the worker.

‘refusal’ of an offer or to do a thing includes a failure to accept the offer or to do the thing.
‘rehabilitation training’ means training of a vocationally useful kind, and includes vocational re-education, work-trials, occupational rehabilitation services or treatment provided by way of rehabilitation.
‘suitable employment’ means suitable employment within the meaning of section 43A.”

Preliminary issues

For the purposes of section 52A, the “relevant time” is “the time at which the notice under section 54 of intention to discontinue payment of compensation pursuant to this section is given”. That is not a fixed point in time, but covers a period leading up to the date on which the notice is served (Hughston v Hughston & Sons Pty Ltd (1999) 18 NSWCCR 312 at 321). The appellant submits, and Mr Brown does not disagree, that the “relevant time” in the present matter is from mid-2008 until 17 December 2008.

The Arbitrator correctly observed that to succeed with an application under section 52A an employer must establish that, at the time at which the notice of intention to discontinue payment of compensation under the section is given:

(a)the worker is partially incapacitated;
(b)the worker has been partially incapacitated for at least 104 weeks;
(c)the worker is not suitably employed, and
(d)the worker is not seeking suitable employment.

The Arbitrator’s findings that Mr Brown is partially incapacitated, has been so incapacitated for at least 104 weeks and is not suitably employed are not challenged on appeal and are confirmed.

As the Arbitrator did not hear any oral evidence and he did not base his decision on any aspect of Mr Brown’s demeanour, I do not accept that he enjoyed any or any relevant advantage over a Presidential member conducting a review in the determination of the issues in dispute. The Arbitrator dealt with the issues on the basis of oral submissions together with his consideration of the written material before him. Though Mr Brown was present during arbitration and was not present during the oral hearing of the appeal, I do not believe that has disadvantaged me in conducting the review.

Interpretation of section 38A(2)

Whether a worker is seeking suitable employment for the purposes of section 52A(1)(a) is determined in accordance with section 38A. Under section 38A(2) a worker is not to be regarded as seeking suitable employment unless he or she complies with the four sub-sections listed. The first three sub-sections are not in issue. Whether Mr Brown was “taking reasonable steps to obtain suitable employment from some other person” (sub-section (d) of section 38A(2)) is the critical issue in dispute.

I do not accept the appellant’s submission that Mr Brown cannot be regarded as having complied with section 38A(2)(d) because he was neither seeking nor receiving rehabilitation training. The words at the conclusion of sub-section (2) of section 38A state that “Taking reasonable steps to obtain suitable employment includes seeking and receiving rehabilitation training that is reasonably necessary to improve the worker’s employment prospects.” These words do not add an additional condition to sub-section (2) that must be satisfied before a worker can be regarded as seeking suitable employment.

The four conditions in sub-section (2) of section 38A are set out in paragraphs (a), (b), (c) and (d), each of which is joined by the conjunctive “and”. As a result, a worker will not be regarded as seeking suitable employment unless he or she satisfies all of those conditions. However, the words commencing “Taking reasonable steps...” appear as a separate paragraph after subparagraph (d). Thus, these words should be interpreted independently of sub-sections (a), (b), (c) and (d). By their positioning, and the use of the word “includes”, the words add to the circumstances where a worker will be considered to be taking reasonable steps to obtain suitable employment the situation where he or she is “seeking or receiving rehabilitation training that is reasonably necessary to improve the worker’s employment prospect”. They do not add a fifth condition precedent that must be satisfied before a worker can be regarded as seeking suitable employment.

It follows that it should be accepted that a worker is taking reasonable steps to obtain suitable employment if, though not actually applying for suitable employment, he or she is “seeking or receiving rehabilitation training that is reasonably necessary to improve the worker’s employment prospects.”

Was Mr Brown seeking suitable employment at the relevant time?

Whether Mr Brown was, at the “relevant time”, taking reasonable steps to obtain suitable employment requires a careful examination of the evidence. He relies on his job search logs, which record that he applied for the following jobs and received the following responses from the prospective employers:

5 May 2008window cleaning              not capable
5 May 2008picking up glasses             not capable/no work
7 May 2008cleaning  not capable
8 May 2008picking up glasses             not capable
20 July 2008           constructions  no work available
23 July 2008           carpenter  no light duty work
24 July 2008           storeman  already have one
27 July 2008           landscaper  not suitable with injury
9 September 2008    pools  no light duty is available
12 September 2008 picking up glasses             nothing available
14 September 2008 picking up glasses             no work
20 September 2008 window cleaning              no work
14 August 2008      bobcats  not applicable
16 August 2008      cleaning  no work available
17 August 2008      antenna man  too much risk, working on roofs
20 August 2008      painting  need to be experienced
14 October 2008     pest control  no work
16 October 2008     plumbing  no work
19 October 2008     cleaning blinds                 no work
20 October 2008     carpet cleaning                  no work
15 November 2008 gutters and leaves             nothing available
18 November 2008 tile shop  no light duties
21 November 2008 pools  no work
22 November 2008 solar heating  no work

Apart from picking up glasses and window cleaning, Mr Brown has not identified the jobs for which he allegedly applied.

The above analysis reveals that of the 24 businesses allegedly approached by Mr Brown, at least 17 had no work, or no suitable work, available and five indicated “not capable” or “not suitable with injury”. Of those five, one indicated “not capable” and “no work”. Of the remaining jobs, one was described as involving “too much risk”, one needed experience and one responded with “not applicable”. I interpret the description “not capable” to mean that the particular job was not suitable for Mr Brown. Whether it was not suitable because of his injury or because of a lack of experience and training is not known. Assuming that “not capable” meant not suitable, at least 22 (over 90%) of the businesses Mr Brown approached either had no work or no suitable work.

Given the extraordinary history of this matter, Mr Brown’s conduct in failing to attend numerous appointments with APM, refusing to answer phone calls, failing to co-operate with the rehabilitation providers, whose office is only a few minutes drive from his home, and his abusive conduct towards CGU staff, I do not accept Mr Brown as a reliable and credible witness and I have real reservations as to whether he genuinely sought employment from the businesses identified in his job logs.

His assertion that he did not submit any job search forms after May 2008 because the insurer had not sent the forms to him is implausible in the extreme and is contradicted by his own evidence that he made copies of the relevant forms and completed them between May and November 2008. If that is correct CGU’s failure to send the further forms was irrelevant and provided no excuse for not submitting the job logs when they were completed.

His assertion that CGU did not ask him to submit job log forms after May 2008 is demonstrably wrong and significantly undermines his credibility. CGU informed Mr Brown in letters written in clear unequivocal terms dated 31 March 2008, 21 April 2008, 4 June 2008 and 27 June 2008 that he was to complete and return job logs (see [42], [47], [53] and [57] above). Since Mr Brown states that he received all of the Injury Management Plans sent to him by CGU, I am satisfied that he also received the letters advising him to complete and return the job logs. His failure to return the job logs at the time they were allegedly completed raises serious questions about the reliability of the job logs and whether they represent evidence of reasonable steps to obtain suitable employment.

In any event, assuming that Mr Brown sought employment of the kind listed in the job logs, the majority of the jobs he allegedly applied for were clearly not suitable. The requirement in section 52A is for a worker to seek “suitable employment”. A worker is not to be regarded as seeking suitable employment unless he or she is “taking reasonable steps to obtain suitable employment from some other person” (section 38A(2)(d)). Merely approaching several businesses, regardless of whether those businesses have, or are likely to have, suitable employment available does not satisfy that requirement.

There is no evidence that he undertook any job searching in newspapers or through job agencies. I infer, based on his statement to Ms Tanner that he had never previously used any job search method other than word-of-mouth (see [16] above), that he did not do so. Thus, on the available evidence, it appears that Mr Brown merely “cold canvassed”. Whether he did so using his “extensive contacts in the Port Macquarie area” (see Mr Brown’s statement 14 January 2009 at paragraph 19) is not known, but the reasonable inference from the job logs is that he was not applying for advertised positions. Whilst “contacts” will often be a valuable source of job leads, the fact that Mr Brown applied to such a high percentage of businesses that had no jobs at all, let alone suitable jobs, strongly suggests to me that, if he did seek employment as he claims, he was merely going through the motions rather than taking reasonable steps to obtain suitable employment.

I have had careful regard to the fact that Mr Brown was not cross-examined. Though cross-examination may have assisted in the resolution of a number of issues in this case, the fact that Mr Brown was not cross-examined has not resulted in any procedural unfairness. Though the Arbitrator enquired if there was any application for oral evidence (by either side) (T2.37), he gave no indication if such an application would have been granted. Parties are expected to fully prepare their cases in documents filed at the commencement of the proceedings and cross-examination is only allowed by leave, not as of right (Aluminium Louvres & Ceilings Pty Ltd v Xue Qin Zheng [2006] NSWCA 34; (2007) 4 DDCR 358). Mr Brown filed a detailed statement setting out the circumstances of his job seeking. In these circumstances Mr Brown has always been aware of the nature of the appellant’s case and he has had every opportunity to present his case.

I do not accept the submission that the insurer had not directed Mr Brown as to how he had to seek employment. In its letter to Mr Brown on 21 April 2008, CGU advised Mr Brown he was required to take all reasonable steps to actively seek suitable paid employment. Those steps included registering with Centrelink, registering with job networking members or other commercial job agencies or job clubs, actively checking the local and national newspapers, checking the Australia job search Internet site, and/or seeking rehabilitation training. I am satisfied that Mr Brown did none of those things.

How Mr Brown conducted his job search was not left solely to his discretion. He was required to undertake “reasonable steps” and the insurer had advised him in writing of some of those steps. He chose to ignore that advice.

I agree with Mr Vorbach’s submission that Vezitis is an authority that turned on its own facts. However, the judge in that case held that the worker had not been taking reasonable steps to obtain suitable employment because, rather than seeking suitable employment as advertised in the newspaper, he had simply gone into factories and deliberately asked for “light duties”. In the trial judge’s view, such an approach was unlikely to achieve the desired result. If the desired result was to obtain suitable employment, I fully agree with the trial judge’s observation. Similarly, Mr Brown’s approach was unlikely to secure suitable employment and did not amount to “taking reasonable steps to obtain suitable employment”.

For the above reasons, I am comfortably satisfied that Mr Brown was not seeking suitable employment (as determined in accordance with section 38A) between May 2008 and December 2008.

Section 38A(5)

If I am wrong in my conclusion that Mr Brown was not seeking suitable employment at the relevant time, it is necessary to consider the terms of section 38A(5). A worker is not to be regarded as seeking suitable employment if he or she has unreasonably refused an offer from any person of suitable employment or necessary rehabilitation training. A worker is also not to be regarded as seeking suitable employment if the worker:
(a)unreasonably refuses to have an assessment made of his or her employment prospects, or

(b)unreasonably refuses to co-operate in procedures connected with the provision or arrangement of suitable employment or rehabilitation training under the employer’s return-to-work programme.

As I understand the appellant’s argument, it relies on sub-sections (a) and/or (b) of section 38A(5). In respect of sub-section (b), I accept Mr Vorbach’s submission that there is no evidence that Mr Brown unreasonably refused to co-operate with rehabilitation training “under the employer’s return-to-work programme”. There is no return to work programme.

In respect of sub-section (a), it is submitted, and I accept, that the unchallenged evidence is that Mr Brown failed to attend a vocational assessment and functional capacity evaluation on two separate occasions, once in August 2008 and once in September 2008. I also accept that the vocational assessment and functional capacity evaluation arranged by APM in August 2008 were a legitimate and reasonable attempt to “have an assessment made of the worker’s employment prospects” and therefore came within the terms of section 38A(5)(a). The assessments were initially to be conducted on 22 August 2008. At Mr Brown’s request, APM rescheduled them for 25 August 2008. Without giving any prior notice, Mr Brown failed to attend. The appointments were rescheduled for 1 and 3 September 2008 when Mr Brown again failed to attend. On 17 September 2008, Mr Brown advised APM that he had “a lot going on” and would not be attending any appointments with that organisation.

Mr Brown did attend at the APM’s offices for an appointment at 9pm on 2 December 2008 when the office was closed. The fact that Mr Brown chose to turn up at such a late hour, rather than phoning to check if the letter had advised of the correct time, indicates a degree of disingenuousness in Mr Brown’s conduct that has pervaded the whole course of his dealings with APM and CGU. It further erodes his credibility.

Mr Vorbach submits that requiring Mr Brown to attend a further vocational assessment within 12 months of the first assessment was onerous and oppressive and should not be permitted as a basis for criticism of Mr Brown, or termination of his compensation. I do not accept this submission. It is true that Mr Brown underwent a vocational assessment in June 2007. However, the vocational goal/s set at that time, namely, to retrain as a truck driver or storeman, had not been achieved. In addition, the certification from Dr Clarke in mid-2008 suggested that the previous goal of truck driving might no longer have been appropriate. In these circumstances it was reasonable that a vocational assessment and functional capacity evaluation be conducted in August 2008.

Mr Brown has offered no reasonable explanation as to why he failed to attend the appointments with APM on 25 August 2008 and in September 2008. Whilst his statement suggests that he did not receive a “large number of the letters” attached to the Application, it does not suggest that he did not receive proper notification of the August and September appointments with APM. The appointment in August was changed from 22 to 25 August at his request. The fact that Mr Brown attended on 2 December 2008 confirms that he did receive mail from APM.

I have taken into account and accept Mr Vorbach’s submission that Mr Brown is a person of limited education. I do not, however, accept that Mr Brown did not understand the importance of the meetings with APM or his obligation to attend them. Nor do I accept that the documents forwarded to him were complex or confusing. Mr Brown’s statement does not suggest that he was confused or that he did not understand any of the letters sent to him by either CGU or AMP.

Mr Vorbach has also submitted that the Injury Management Plans prepared by CGU indicated a total “absence of good faith on the part of the insurer” and that it had no sincere intention of rehabilitating Mr Brown. Its actions, so it is argued, were motivated by a desire to fabricate a basis for the application to terminate compensation, filed on 29 December 2008. I do not accept this submission. Section 38A(5)(a) is not concerned with the content or form of the Injury Management Plans or the insurer’s alleged lack of “good faith”. It is concerned with whether the worker has unreasonably refused to have an assessment made of his employment prospects.

I do not accept that it is of any consequence that APM apparently declined to speak with Mr Vorbach. The vocational assessment and functional capacity evaluation had to be conducted with Mr Brown. There was no need for the involvement of a solicitor in that process.

For the above reasons, I am comfortably satisfied that Mr Brown’s failure to attend the appointments with APM in August and September 2008, and his statement on 17 September 2008 that he would not be attending any appointments with APM, amounted to an unreasonable refusal to have an assessment made of his employment prospects. In these circumstances, Mr Brown is not to be regarded as seeking suitable employment.

OTHER MATTERS

Though it is not relevant to my determination, it is appropriate, given the submissions made on appeal, that I respond to Mr Vorbach’s criticisms of the Injury Management Plan dated 7 August 2008. The goal in that plan was for Mr Brown to “gain employment with [a] new employer, different job”. This goal was said to have been developed in consultation with Mr Brown, Dr Clarke and APM. Mr Vorbach criticises the plan on the ground that Dr Clarke had not been consulted by either CGU or APM after April 2008, the plan did not define measurable goals or provide constructive direction to Mr Brown as to what was expected of him, and the initial assessment completed in 2007 had not been served until December 2008. It is argued that the plan was a “formulaic a response to the statutory requirements” of the legislation and was not a sincere endeavour on behalf of CGU to offer rehabilitation services to Mr Brown.

I do not accept these criticisms of the Injury Management Plans in general or the 7 August 2008 plan in particular. By the time the 7 August 2008 plan was prepared, CGU was aware that Dr Clarke had amended his restrictions for Mr Brown and, on the face of those amendments, the previous goal of truck driving was, arguably, no longer appropriate. Further, in the absence of a further vocational assessment and functional capacity evaluation, it was not possible to identify a specific measurable vocational goal. The fact that Mr Brown had not been provided with a copy of the 2007 assessment until December 2008 was of no consequence. He was fully aware of the result of the 2007 assessment and the goals set at that time.

Mr Vorbach’s further submission that the vocational goal of truck driving was set by APM is inaccurate. That goal was set after discussions with Mr Brown in which he indicated he was “motivated to undertake a training course to gain his heavy rigid driver’s licence and his forklift licence”. The submission that the reference to Mr Brown being able to drive “15 hours continuously” is a clear error and should be a reference to 1.5 hours is open to doubt. The reference to Mr Brown’s driving capacity in APM’s report of 5 June 2007 appears at page 5. The full entry reads “Driving – Unrestricted. Can drive 15 hours continuously with no aggravation to injury”. This entry is consistent with a note on page 4 of the same report under “Transferable Skills Analysis” that states, among other things, “Ability to drive for long distances”. Further, if Mr Brown’s ability to drive at that time was restricted to 1.5 hours, it seems extremely unlikely that APM would have recommended training to obtain his heavy rigid driver’s licence.

In respect of the evidence that suggests that Mr Brown verbally abused certain staff members at CGU, I reject the suggestion that Mr Brown was provoked. I accept that he did use abusive language on more than one occasion and there is no credible evidence that he was provoked in any way.

I do not accept that anything of relevance turns on the fact that CGU declined to provide Mr Brown with a different case manager. I have seen nothing about the case manager’s conduct that would have warranted the granting of that request.

CONCLUSION

Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I am satisfied that the true and correct position is that at the “relevant time” Mr Brown was not “seeking suitable employment (as determined in accordance with section 38A)” and, as the other preconditions for reliance on section 52A are satisfied (see [90] and [91] above), weekly compensation payments in respect of Mr Brown’s partial incapacity for work beyond 17 December 2008 are not payable. To give effect to this finding, paragraph 1(b) of the consent determination of 11 August 2003 is amended to delete the words “to date and continuing” and insert “17 December 2008”.

DECISION

Paragraphs one and two of the Arbitrator’s determination of 30 March 2009, as amended on 13 May 2009, are revoked and the following orders made:

“1.The applicant employer having satisfied the grounds in section 52A(1)(a) of the Workers Compensation Act 1987, weekly compensation payments in respect of the respondent worker’s partial incapacity for work beyond 17 December 2008 are not payable.
2.Paragraph 1(b) of the Certificate of Determination dated 11 August 2003 is amended to delete the words “to date and continuing” and insert “17 December 2008”.
3.No order as to costs.”

COSTS

Each party is to pay his or its own costs of the appeal.

Bill Roche
Deputy President

31 July 2009

I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE

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Citations

J & K Bricklaying Pty Ltd v Brown [2009] NSWWCCPD 89

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State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249